# October 22 THUNGABHADRA INDUSTRIES LTD v. THE GOVERNMENT OF ANDHRA PRADESH

- **Citation:** [1964] 5 S.C.R. 174
- **Court:** Supreme Court of India
- **Decided:** 1961-01-06
- **Bench:** A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/october-22-thungabhadra-industries-ltd-v-the-government-of-andhra-pradesh-2969
- **Pages:** 17

## Headnote

Civil Procedure Code, 1908 (5of1908), 0. 47, r. 1-Petitionfor
certificate of fitness under Constitution Act, 13I(l)(c)-Order that
the cost does not involve any substantial question of /aw-Whether
an "error apparent on the/ace of the record".
Practice and Procedure-Notice to respondent before granting
special /eave-Whether objection to the maintainability of appeal
permitted after grant of special leave-Supreme Court Rules, 1950,
0. XIX,r. 4.
In respect of the assessment year I 949-50, the appellant while
submitting his return disclosing his turnover of the sale of oil,
included therein the value of the hydrogenated oil that he sold
and claimed a deduction under r. I 8 of the Turnover and Assessment Rules in respect of the value of the groundnuts which had
been utilised for conversion into hydrogenated oil on which he
had paid tax at the point of their purchase. The sales tax authorities rejected the claim on the ground that hydrogenated groundnut
oil was not groundnut oil within that rule. This view was upheld
by the High Court on February II, 1955,. in the Tax Revision
Case No. 120 of 1953 filed by the appellant, but, on application,
the High Court granted a certificate of fitness under Art. 133(1)
of the Constitution oflndia on the ground that substantial questions
oflaw arose for decision in the case. For the assessment years 1950..
51, 1951-52 and 1952-53, the same question as to whether hydrogenated groundnut oil was raised and decided against the appellant by the sales tax authorities and the High Court.
The
appellant then applied. for a certificate of fitness . un.der Art.
133(1) of the Constitution, but the High Court d1sm1ssed the
petition on September 4, 1959, stating: "The judgment sought to
I
\
I
5 S.C.R.
SUPREME COURT REPORTS
175
be appealed against is one of affirmance. We do not think that
1963
it involves any substantial question of law .................. nor do we
regard this as a fit case for appeal to the Supreme Court." On Thungabhadra
November 23, 1959, applications for review were filed under L dust ies Ltd
0. 47, r. l, of the Code of Civil Procedure but they were dismissed. n
'
·
The appellant then applied for special leave under Art. 136 of the
v.
Constitution against the orders dismissing the applications for The Government
review and leave was granted after notice to the respondent. When of Andhra Prathe appeal came on for hearing in the Supreme Court, the respondesh
dent raised a preliminary objection that the special leave granted
to the appellant should be revoked. The grounds for revoking
the special leave were not urged by the respondent at the time
of the hearing of the applications under Art. 136, nor were they
set out in the statement of case filed by the respondent under O.XVIII
of the Supreme Court Rules, 1950.
Held:
(i) that where notice is given to the respondent before the hearing of the application for grant of special leave, no
objection to the maintainability of the appeal or to the granting
of special leave would be permitted to be urged at any stage after
the grant of it, except possibly where the ground urged happens
to arise subsequent to the grant of leave or where it could not be
ascertained by the respondent at that date notwithstanding the
exercise of due care.
(ii) that the statement in the order dated September 4, 19S9,
that the case did not involve any substantial question of law,was
an "error apparent on the face of the record" within the meaning
of 0. 47, r. l, of the Code of Civil Procedure inasmuch as this was
a case where without any elaborate argument one could point
to the error and say that here was a substantial point of law which
stared in the face.
CIVIL APPELLATE JuRISDIClION: Civil Appeals
Nos. 781-783 of 1962.
Appeals by special leave from the judgment
and order January 6, 1961, of the Andhra Pradesh
High Court in Civil Miscellaneous Petition Nos.
4672 to 4674 of 1960.
A. V. Viswanatha
Sastri,
M.S.K.
Sastri and
M.S. Narasimhan, for the appellant (in all the ap

## Text

174
SUPREME COURT REPORTS
[1964J
1963
Rs. 70 per month. ·We direct, having regard to the
circumstances, that there shall be no order as to
Vora Abbasbhai costs in this appeal.
Alimahomed
v.
Appeal allowed.
Haji Gu/amnabi
Haji Sajibhai
ShahJ.
1963
October 22
THUNGABHADRA INDUSTRIES LTD.
v.
THE GOVERNMENT OF ANDHRA PRADESH
(A.K. SARKAR, K.C. DAS GUPTA AND N. RAJAGOPALA
AYYANGAR JJ.)
Civil Procedure Code, 1908 (5of1908), 0. 47, r. 1-Petitionfor
certificate of fitness under Constitution Act, 13I(l)(c)-Order that
the cost does not involve any substantial question of /aw-Whether
an "error apparent on the/ace of the record".
Practice and Procedure-Notice to respondent before granting
special /eave-Whether objection to the maintainability of appeal
permitted after grant of special leave-Supreme Court Rules, 1950,
0. XIX,r. 4.
In respect of the assessment year I 949-50, the appellant while
submitting his return disclosing his turnover of the sale of oil,
included therein the value of the hydrogenated oil that he sold
and claimed a deduction under r. I 8 of the Turnover and Assessment Rules in respect of the value of the groundnuts which had
been utilised for conversion into hydrogenated oil on which he
had paid tax at the point of their purchase. The sales tax authorities rejected the claim on the ground that hydrogenated groundnut
oil was not groundnut oil within that rule. This view was upheld
by the High Court on February II, 1955,. in the Tax Revision
Case No. 120 of 1953 filed by the appellant, but, on application,
the High Court granted a certificate of fitness under Art. 133(1)
of the Constitution oflndia on the ground that substantial questions
oflaw arose for decision in the case. For the assessment years 1950..
51, 1951-52 and 1952-53, the same question as to whether hydrogenated groundnut oil was raised and decided against the appellant by the sales tax authorities and the High Court.
The
appellant then applied. for a certificate of fitness . un.der Art.
133(1) of the Constitution, but the High Court d1sm1ssed the
petition on September 4, 1959, stating: "The judgment sought to
I
\
I
5 S.C.R.
SUPREME COURT REPORTS
175
be appealed against is one of affirmance. We do not think that
1963
it involves any substantial question of law .................. nor do we
regard this as a fit case for appeal to the Supreme Court." On Thungabhadra
November 23, 1959, applications for review were filed under L dust ies Ltd
0. 47, r. l, of the Code of Civil Procedure but they were dismissed. n
'
·
The appellant then applied for special leave under Art. 136 of the
v.
Constitution against the orders dismissing the applications for The Government
review and leave was granted after notice to the respondent. When of Andhra Prathe appeal came on for hearing in the Supreme Court, the respondesh
dent raised a preliminary objection that the special leave granted
to the appellant should be revoked. The grounds for revoking
the special leave were not urged by the respondent at the time
of the hearing of the applications under Art. 136, nor were they
set out in the statement of case filed by the respondent under O.XVIII
of the Supreme Court Rules, 1950.
Held:
(i) that where notice is given to the respondent before the hearing of the application for grant of special leave, no
objection to the maintainability of the appeal or to the granting
of special leave would be permitted to be urged at any stage after
the grant of it, except possibly where the ground urged happens
to arise subsequent to the grant of leave or where it could not be
ascertained by the respondent at that date notwithstanding the
exercise of due care.
(ii) that the statement in the order dated September 4, 19S9,
that the case did not involve any substantial question of law,was
an "error apparent on the face of the record" within the meaning
of 0. 47, r. l, of the Code of Civil Procedure inasmuch as this was
a case where without any elaborate argument one could point
to the error and say that here was a substantial point of law which
stared in the face.
CIVIL APPELLATE JuRISDIClION: Civil Appeals
Nos. 781-783 of 1962.
Appeals by special leave from the judgment
and order January 6, 1961, of the Andhra Pradesh
High Court in Civil Miscellaneous Petition Nos.
4672 to 4674 of 1960.
A. V. Viswanatha
Sastri,
M.S.K.
Sastri and
M.S. Narasimhan, for the appellant (in all the appeals).
A. Ranganadham Chetty and R.N. Sachthey,
for the respondent (in all the appeals).
October 22, 1963. The Judgment of the Court
was delivered by
AYYANGAR J.-The points raised in these three
Ayyangar J.
appeals which come before us by virtue of special leave
under Art. 136 of the Constitution are somewhat
176
< SUPREME.COURT:REPORTS
· (1'964]
1963
out of the ordinary and raise for consideration wbether
the common order passed by the High Court of Andhra
Tfiimga~ha</ra Pradesh rejecting applications to review an eadier
hi<lustnes Lt</. order by that court, is correct on the facts which
v.
we shall state presently.
.
The.Government . ·
·
.
·
. ·
.
·
of:4ndhra.Pta-
. , . The appellant~M/s Thungabhadra Industries Ltd.
desh·
are .manufacturers of groundnut oil, part of which
they convert for sale into hydrogenated oil while
Ayyangar J. the rest is sold as ordinary oil. , Under the Madras
General , Sales Ta.x Act,
hereinafter
referred to
as the Act, which has applicati6n to the State of Andhra
Pradesh, while in regard to groundnuts the tax is
levied at the point of purchase, groundnut oil is
taxed at the point of sale. The result of this feature
naturally is that when a person purchases groundnut
and ccnverts the same into oil and sells the oil extracted he has to pay tax at both the points. Rules
have been framed.in order to alleviate what might be
considered a hardship by reason of this double levy:
Rule S(k) ·of the Turnover & Assessment Rules provides:
·
·
. "5. (k) in the case of a. registered manufac-
. turer of groundnut oil and cake, the amount
which he is entitled to deduct from his gross
turnover under rule 18 .subject to the conditions
i · 'specified 'in that rule". ·
·
· ·
·
,
and Rule 18 referred to reads:
J
. .
.
. .
"18. (I) .Any dealer who man,ufactures
groundnut ,oil an\! ,cake from groundnut and/or
kernel purchased by him may, on .application to
'· the a~sessin~ aiithority paving j1;1risdic~ion over the
area rn which .he carnes on his busmess, be re-
.· . 'gisteted as a manufa.cturer of groundnut oil and
· · cake.
(2) Every such registered nmnufacturer of
groundnut oil will 'be entitled to a deduction under
clause (k) of sub-rule (I) of rule 5 equal to the
•
va,Jue of the groundnut and/or kernel, purchased
. by him ·and converted· into oil and cake if he
" · · · has paid the tax to'the State onsuch purchases : · ·
I
I
• -
5 S.C.R.
SUPREME COURT REPORTS
177
Provided that the amount for which the oil
1963
is sold is included in his net turnover:
Thungabhadra
Provided further that the amount of the turn Industries Ltd.
over in respect of which deduction is allowed shall
v.
not exceed the amount of the turnover attri- The Government
butable to the groundnut and/or kernel used of Andhra Prain the manufacture of oil and included in the
desh
net turnover."
The appellant is admittedly a manufacturer who
is registered for the purposes of that rule.
Jn respect of the year 1949-50 the appellant while
submitting his return disclosing his turnover of the
sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction
under the rule in respect of the value of the groundnuts
which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of
their purchase. This claim was negatived by the
Sales Tax authorities on the ground that "hydrogenated
groundnut oil" was not "groundnut oil" within
r. 18(2). Having failed before the departmental autho·
rities in getting its claim to deduction allowed, the
appellant approached the High Court with a Tax
Revision Case numbered 120 of 1953 on its file but
the High Court, by its judgment dated February 11,
1955, upheld the view of the department. An application was thereafter made to the High Court
to grant a certificate of fitness under Art.
133(1)
on the ground that substantial questions of law as
to the interpretation of the General Sales Tax Act
and the Rules made thereunder, as well as of certain
other ~nact~ents which were relied upon in support
of the!f claim by the appellants, arose for decision
in the case. The learned Judges by their order dated
February 21, 1956 granted the certificate. In view
of the points arising in this appeal we consider it
would be convenient to set out the text of this order:
"This petition raises a question of general im·
porta:ice namely whether hydrogenated groundnut 011 popularly known as Vanaspathi is ground·
1 SCI/64-12
Ayyangar J.
1963
Thungabhadra
Industries Ltd.
v.
The Government
of Andhra Pradesh
AyyangarJ.
[1964] , I
nut oil so as to enable the assessee to claim exem178
SUPREME COURT REPORTS
ption under Rules 18(2) and 5(1) (g) of the Turnover and Assessment
Rules · framed by the
Government in exercise of the powers conferred
by Section 3 and sub rules 4 and 5 of the Madras
General Sales Tax Act, 1939. The answer to
the question arising in this matter turns upon
whether the chief characteristics of groundnut
1
oil remain the same in spite of the chemical
processes it undergoes. It also involves the interpretation of the notifications issued by the
1
Government of India under the
Essential
Supplies (Temporary Powers) Act and certain
provisions of the Vegetable Oils Products Control
Order. In these circumstances we think it a
fit ca&e for appeal to the Supreme Court. Leave
is therefore granted."
Thereafter the appeal was entertained in this
Court and numbered as Civil Appeal 498 of 1958,
was finally disposed of on October 18, 1960 and
is now reported as Mis Thungabhadra Industries Ltd.
v. The Commercial Tax Officer, Kurnoo/(l).
Meanwhile in regard to the assessment of the
three succeeding years-1950-51, 1951-52 and 1952-53,
the same question as to whether "hydrogenated
groundnut oil" was "groundnut oil" entitled to the
deduction of the purchase turnover under r. 18(2)
of the Turnover and Assessment Rules was raised
and was decided against the appellant by the Sales
Tax Officer. This order was taken up in appeal
to the Deputy Commissioner of Commercial Taxes
by the appellant and as apparently the identical
question was pending in the High Court in regard
to the year 1949-50, the appellate authority awaited
the decision of the High Court and when T.R.C.
120 of 1953 was c'ecided against the appellant on
February 11, 1955, disposed of the appeal against
the appellant by its order dated April 5, 1955. Thereafter the appellant approached the Sales Tax Appellate Tribunal but thls was obviously a formality
(1) [1961] 2 S.C.R. 14.
-
..
SS.C.R.
SUPREME COURT REPORTS
179
because the Tribunal were bound by the judgment
1963
of the High Court and the appeals were dismissed
by order dated October 20, 1955. Against the orders Thungabhadra
of the Sales Tax Appellate Tribunal the appellant Industries Ltd.
preferred three Tax Revision Cases-T.R.C. 75,76
v •
and 77 of 1956 in regard to the three assessment years. The Government
The learned Judges of the High Court dismissed the of Andhra Pra·
three Revision Cases on October 7, 1958 following
desh
their earlier decision in T.R.C. 120 of 1953 in regard
to the assessment for the year 1949-50. At this
Ayyangar J.
date, it would be noticed, the correctness of the decision of the High Court in T.R.C. 1'20 of 1953 was
pending adjudication in this Court by virtue of the
Certificate of fitness granted by the High Court under
Art.
133(1 ). Desiring to file an appeal to this
Court against the judgment of the High Court in
these three T<:!x Revision Cases as well, the appellant
filed, on February 16, 1959, three miscellaneous
petitions under Art. 13311) of the Constitution praying for a certificate of fitness that the case involved
substantial questions of law as to the interpretation
of the Sales Tax Act and the Rules made thereunder
etc.
The learned Judges, however, by their order
dated September 4. 1959 dismissed the petition stating:
"The judgment sought to be appealed against
is one of affirmance.
We do not think that
it involves any substantial question
of law
as to the interpretation of the Constitution;
nor do we regard this as a fit case for appeal to
the Supreme Court."
The question that arises for consideration in
these appeals is primarily whether this order dated
September 4, · 1959, is vitiated by error apparent
on the face of the record.
How that matter become~
relevant is because the appellant filed three applications for review of this order under 0. XLVII r. l of
the Civil Procedure Code specifying this as the ground
for relief. These applications for review were filed on
November 23, 1959, and apparently notice was issued
to the respondent-State Government and the petition
for review came on for hearing on January 6, 1961.
1963
Thungabhadra
Industries Ltd.
'V.
The Government
of Andhra Pradesh
Ayyangar J.
180
SUPREME COURT REPORTS
[1964]
· On that date the learned Judges dismissed the said
applications and assigned theJollowing as the reasons
for their order:
"The only ground argued in support of these
review petitions is that leave to appeal to the Supreme Court was granted in similar circumstances in
regard to previous year and there was no reason
why· leave should have been refused in these
cases. We do not think that that would furnish
a sufficient ground for reviewing the order dismissing the petitions for leave to file an appeal to
the Supreme Court. That apart, the Supreme
Court was moved under Article 136 of the Constitution for special leave and that was dismissed
may be on the ground that it was not filed in
time. In the circumstances, we think that our
order dated 4.9.1959 dismissing 5.C.C.M.Ps No.
4823, 4825 and 4R27 of 19~9 cannot be reviewed."
The appellants thereupon made applications for
special leave from this Court to challenge the correctness of this last order and the leave having been
granted after notice to the respondent, the appeals
are now before us.
Before dealing with . the arguments addressed
to us on behalf of the appellant it is necessary to advert
to an objection raised by learned Counsel for the
respondent urging that the special leave granted to
the appellant should be revoked.
We declined to
permit the respondent to urge any such argument
in this case primarily for two reasons. In the first
place, the special leave was granted after notice to
the respondent and therefore after hearing the respondent as to any objection to the maintainability
of the appeal or to the granting of special leave.
In the circumstances, any ground in relation to these
matters should have been urged at that stage and
except possibly in some extraordinary cases where
the ground urged happens to arise subsequent to
the grant of the special leave or where it could not
be ascertained by the respondent at that date notwithstanding the exercise of due care; except in such
"
'
'
5 S.C.R.
SUPREME COURT REPORTS
181
circumstances this Court will not permit the respondent
1963
to urge any argument regarding the correctness of
the order of the Court granting special leave. InThungabhadra
deed, the very object of issuing notice to the res- Industries Ltd.
pondent before the grant of leave is to ensure that
v.
the latter is afforded an opportunity to bring The Government
to the notice of the Court any grounds upon which of Andhra Praleave should be refused and the purpose of the rule
desh
would be frustrated if the respondent were permitted
to urge at a later stage-at the stage of the hearing
Ayyangar I.
of the appeal and long after the appellant has incurred all the costs-that the leave granted after notice
to him should be revoked on a ground which was
available to him when the appeliation for special
leave was heard. This apart, even the statement of
the case filed on behalf of the respondent does not
disclose any ground upon which the leave granted
should be revoked; nor, of course, does it make any
prayer seeking such relief. One of the objects which
the statement of the case is designed to achieve is
manifestly that no party shall be taken by surprise
at the hearing and this is ensured by the provision
in 0. XIX r. 4 of the Supreme Court Rules reading:
"No party shall, wjthout the leave of the Court,
rely at the hearing on any grounds not specified
in the Statement of the Case filed by him."
Nor, of course, was there any contention that
the ground that he proposed to submit came into
existence after the filing of the statement of case.
It was in these circumstances that we declined to
permit the respondent to develop an argument to
persuade us to hold that the leave granted by this
Court should be revoked, though we might add that
the matter mentioned by learned Counsel for the
respondent 'in this respect would not, even if urged
at the hearing of the special leave petition, have
materially assisted him in resisting the grant of special
leave. The point he desired to urge was that in the
petition for special 1 eave the appellant had averred
that the decision of this Court reversing the judgment
of the High Court in T.R.C. 120 of 1953 had been
182
SUPREME COURT REPORTS
[1964]
1963
brought to the notice of the High Court, but that
this statement must be erroneous or untrue for two
Thungabhadra reasons: (1) This is not referred to in the order now
Industries Ltd. under appeal, and (2) the decision of this Court was
v.
not reported in any of the law reports-official or
The Government unofficial -
till long after January 1961 when the
of Andhra Pra- petition for review was heard. It is manifest that
desh
neither of the two circumstances would by itself
prove the untruth of the averment in the special
Ayyangqr l. leave petition. The learned Judges might well have
thought that the decision had no material bearing
on the only point that arose for consideration before
them, viz., whether their order of September 1959
was or was not vitiated by error of the sort which
brought it within 0. XL VII. r. 1 of Civil Procedure
Code. It is obvious that so viewed, it would not
have any relevance. As regards the other point,
the appellant did not have need to wait for a report of
the case in the law reports but might very well
have produced a copy of the judgment of this Courtand being a party to the proceeding here it is improbable that it had not a copy, so, that its statement
that it drew the attention of the Court to the decision is not proved to be false by the decision not
being reported till long after January, 1961. The
oral application for revoking the leave granted is
therefore rejected as entirely devoid of substance.
We shall next proceed to deal with the merits
of the appeals.
Before doing so however, it is
necessary to advert to a circumstance which the
learned Judges considered a proper reason for rejecting the petition for review. This arises out of
lhe second of the grounds assigned by the learned
Judges in their order dated January 6, 1961, refusing
to grant the review.
This may be quoted in their
own words:
·
"That apart, the Supreme Court was moved
under Art. 136 of the Constitution for special
leave and that was dismissed, may be on the
ground that it was not filed in time."
• -
'
5 S.C.R.
SUPREME COURT REPORTS
183
The facts in relation to this matter might now
1963
be stated. As already seen, the applications for
reviewing the order dated September 4, 1959, refusing Thungabhadra
the certificates were filed on November 23, 1959. Industries Ltd.
During the pendency of those review applicat;ons
v.
the appellant filed, on November 30, 1959, petitions The Government
seeking special leave of this Court under Art. 136 °1 Andhra Praof the Constitution but those petitions were filed bedesh
yond the period of limitation prescribed by the Rules.
An application was therefore filed along with the
Ayyangar J.
special leave petitions seeking condonation of delay
in the filing of the petitions. The petitions and the applications for condonation of delay came on together
for hearing and this Court refused to condone the
delay, so that the petitions for special leave never
legally came on the file of this Court.
0. XLVIJ r. 1(1) of the Civil Procedure Code
permits an application for review being filed "from
a decree or order from which an appeal is allowed
but from which no appeal has been preferred." In
the present case, it would be seen, on the date when
the application for review was filed the appellant had
not filed an appeal to this Court and therefore the
terms of 0. XLVII r. 1(1) did not stand in the way of
the petition for review being entertained. Learned
Counsel for the respondent did not contest this position.
Nor could we read the judgment of the High Court
as rejecting the petition for review on that ground.
The crucial date for determining whether or not the
terms of 0. XL VII. r.l (l) are satisfied is the date when
the application for review is filed. If on that date
no appeal has been filed it is competent for the Court
he.ari~g the petition ~or revi~w to dispose of the .apphcat10n on the ments notwithstanding the pendency
of the appeal, subject only to this, that if before
the application for review is finally decided the appeal
itself has been disposed of, the jurisdiction of the Court
hearing the review petition would come to an end.
The next question is as regards the effect of
the refusal of this court to condone the delay in filing the petition for special leave. Here again, it
184
SUPREME COURT REPORTS
[1964]
1963
was not contended that the refusal of this Court
to entertain the petition for special leave on the
Thungabhadra grounds just now stated was a bar to the jurisdiclndustries Ltd. tion or powers of the Court hearing the review pev.
tition. This position was not contested by the learnThe Government ed Advocate for the respondent either. In these
of Andhra Pra- circumstances, we are unable to agree with the learned
desh
Judges of the High Court that the refusal by this
-
Court to condone the delay in filing the petition
Ayyangar J. for special leave was a circumstance which could either
bar the jurisdiction of the High Court to decide the
petition for review or even could be a relevant matter
to be taken into account in deciding it. ff therefore
their original order dated September 4, 1959, was
vitiated by an error apparent on the face of the record,
the failure of the special leave petition to be entertained in this Court in the circumstances in which it
occurred, could not be any ground either of itself or
tak~n along with others to reject the application for
review.
We consider it would be convenient to consider
the first part of the order of the High Court now
under appeal after examining the principal question
whether the order of September, 1959, rejecting the
appellant's petition for a certificate is vitiated by
· error apparent on the record. ff one analysed that
order only one reason was given for the rejection
of the certificate of fitness.
No doubt, in the first
sentence of their order they stated that the judgment
was one of affirmance, but that was merely preliminary to what followed where they recorded that
the certificate was refused for the reason that the
case did not involve any substantial question of law
regarding the interpretation of the Constitution. The
preliminary 5tatement that their judgment was one
of affirmance would, however, seem to show that
what the learned Judges had in mind were the terms
of Art. 133 of the Constitution where alone-as distinct from Art. 132-there is reference to a judgment
of affirmance, though per incuriam they reproduced
the terms of Art. 132(1). As it was the case of no
t
\
5 S.C.R.
SUPREME COURT REPORTS
185
party that any question of interpretation of the
1963
Constitution was involved, the reference to "the
substantial question of law relating to the interpreThungabhadra
tation of the Constitution" must obviously have Industries Ltd.
been a mistake for a substantial question of Jaw
v.
arising in the appeal. Though learned Counsel for The Government
the appellant stressed this ground in the order of of Andhra PraSeptember, 1959 as itself disclosing an error apparent
desh
on the face of the record or was at least, indicative
that the learned Judge> did not apply their mind5
Ayyangar J.
to the consideration of the question arising in the
application for a certificate of fitness, we shall proceed on the basis that this was merely a clerical
error in their order and that the learned Judges had
really in mind the terms of Art. 133(1) which had
been invoked by the appellants in their application
for the certificate. On the basis that the words in
the order of September, I 959 referring to a substantial
question of law as to the interpretation of the Constitution were really meant to say that no substantial
question of law was involved in the appeal sought
to be filed in this Court how does the matter stand?
There was practically no question of fact that fell
to be decided in T.R.Cs. 75 to 77 of 1956 and the sole
question related to the claim to deduct the value of
the groundnut on which purchase tax had been paid
and which had been converted into hydrogenated oil
which had been sold and which had been included
in the appellant's turnover. In fact, these T.R.Cs. were
decided by the High Court not independently on
a consideration of any particular facts which arose
in them, but by following the decision of the High
Court in .T.R.C., 120 of 1953 which had accepted the
construct10n which the departmental authorities had
placed on r. 18(2) of the Turnover & Assessment
Rules. The substantial points of law which were
claimed to arise in the appeal had been set out in
extenso in the petition seeking the certificate and
in fact, they were practically a reproduction of th~
contents of the earlier petition seeking a certificate
against the decision in T.R.C. 120 of 1953. The
learned Judges-and the learned C.J. was a party
186
SUPREME COURT REPORTS
[1964]
1963
to the earlier decision and to the grant of the certificate of fitness on that occasion-considered these
ThungaMadra points and had stated as their opinion that substantial
Industnes Ltd. questions of law of general importance were involved
v.
in the case and they had given expression to these
The Government views in a iudgment which we have reproduced earlier.
of Andhra Pra-
-
desh
What, however, we are now concerned with
is whether the statement in the order of September
Ayyangar J.
1959 that the case did not involve any substantial
question of law is an "error apparent on the face
of the record". The fact that on the earlier occasion
the court held on an identical state of facts that a
substantial question of law arose would not per se be
conclusive, for the earlier order itself might be
erroneous. Similarly, even if the statement was wrong,
it would not follow that it was an "error apparent
on the face of the record", for there is a distinction
which is real, though it might not always be capable
of exposition, between a mere erroneous de:;ision
and a decision which could be characterised as vitiated by "error apparent". A review is by no means
an appeal in disguise whereby an erroneous decision
is reheard and corrected. but lies only for patent
error. We do not consider that this furnishes a
suitable occasion for dealing with this difference
exhaustively or in any great detail, but it would suffice
for us to say that where without any elaborate
argument one could point to the error and say here
is a substantial point oflaw whkh stares one in the face,
and there could
reasonably be no two opinions
entertained about it, a clear case of error apparent
on the face of the record would be made out. No
questions of fact were involved in the decision of the
High Court in T.R.Cs. 75 to 77 of 1956. The entire
controversy turned on the proper interpretation of
r. 18(1) of the Turnover & Assessment Rules and
the other pieces of legislation which are referred to
by the High Court in its order of February 1956:
nor could it be doubted or disputed that these were
substantial questions of law. In the circumstances
therefore, the submission of the appellant that the
.
\
\
,,
5 S.C.R.
SUPREME COURT REPORTS
187
order of September 1959 was vitiated by "error ap1963
parent" of the kind envisaged by 0. XL VII r. l, Civil
Procedure Code when it stated that "no substantial Thungabhadra
question of law arose" appears to us to be clearly industries Ltd.
well-founded. Indeed, learned Counsel for the resv.
pondent did not seek to argue that the earlier order The Government
of September 1959 was not vitiated by such error.
of Andhra Pradesh
He, however, submitted that this Court should
have regard not to whether the earlier order was
Ayyangar J.
so vitiated or not but to the grounds which were
urged by the appellant at the hearing of the application for review and that if at that stage the point in
the form in which we have just now expressed was
not urged, this Court would not interfere with the
order rejecting the application for review. He pointed
out that at the stage of the arguments on the application for review the only ground which was urged
before the Court, as shown by the judgment of the
Court, was that the order of September, 1959 was
erroneous for the reason that a certificate had been
granted on a previous occasion. We have extracted
the text of this order of January, 1961 in which this
argument is noticed and it is stated that it was the
only point urged before the Court. The question
then arises as to what i> meant by "in similar circumstances in regard to a previous year". Learned
Counsel for the respondent submits that we should
understand these words to mean that the appellant
relied on the order dated February 21, 1956, granting
the certificate of fitness in regard to the decision
of the High Court in T.R.C. 120 of 1953 solely
as some sort of precedent and no more.
On
that basis learned Counsel strenuously contended
that the mere fact that in regard to an earlier year a
certificate was granted would not by itself render
an order refusing a certificate in a later year erroneous
on the ground of patent error. We have already
dealt with this aspect of the matter. We do not,
however, agree that this is the proper construction
of the argument that they rejected. The order dated
February 21, 1956, in relation to the previous year
188
SUPREME COURT REPORTS
[1964]
1963
was placed before the court and was relied on not
as a binding precedent to be followed but as setting
Thungabhadra out the particular substantial questions of law that
Industries Ltd. arose for decision in the appeals, and the attention
v.
of the Court was drawn to the terms of the previous
The Government order with a view to point out the failure to appreciate
of Andhra Pra- the existence of these questions and to make out
desh
that the statement in the order of September, 1959
that no substantial question of law was involved in
Ayyangar 1·
the appeals was erroneous on the face of it. This
is made perfectly clear by the contents of the petition
for review where the aspect we have just now set out
is enunciated. The earlier order being of the same
Court and of a Bench composed in part of the same
Judges, the earlier order was referred to as a convenient summary of the various points of law that
arose for the purpose of bringing to the notice of
the Court the error which it committed in stating that
no substantial question of law arose in the appeals.
If by the first sentence the learned Judges meant that the
contention which they were called upon to consider
was directed to claim the previous order of 1956 as a
binding precedent, they failed to appreciate the substance of the appellant's argument. If, however,
they meant that the matters set out by them in their
order granting a certificate in relation to their decision in T.R.C. 120 of 1953 were not also involved
in their judgment in T.R.Cs. 75 to 77 they were in
error, for it is the case of no one that the questions
of law involved were not identical.
If, besides,
they meant to say that these were not substantial
questions of law within Art. 133(1 ), they were again
guilty of error. The reasoning, therefore, of the
learned Judges in the order now under appeal, is
no ground for rejecting the applications to review
their orders of September, 1959. We therefore consider that the learned Judges were in error in rejecting the application for review and we hold that the
petitions for review should have been allowed. We
only desire to add that in so holding we have not in
any manner taken into account or been influenced
by the view expressed by this Court in Tungabhadra
t·
t
5 S.C.R.
SUPREME COURT REPORTS
189
1963
Industries Ltd. v. The
Commercial
Tax Officer,
Kurnoo/C 1l regarding the construction of Rule 18(2) of
the Turnover & Assessment Rules, since that decision Thungabhadra
is wholly irrelevant for considering the correctness of Industries Ltd.
the order rejecting the applications for review which is
v
the only question for decision in these appeals.
The Government
Before concluding we desire to make an observation arising out of an appeal made to us by learned
Counsel for the respondent that even if the· appeal
were allowed we should make no direction as regards
costs against his client. The right of the. appellant
to the benefit of the exemption which he claimed
and which was disallowed to him by the judgment
of the High Court in T.R.Cs 75, 76 and 77 really
depended on the correct construction of r. 18(2) of
the Turnover & Assessment Rules and in particular
on the meaning of the expression "groundnut oil"
occurring there-whether it included "hydrogenated
oil". This Court in its judgment in M/s Tungabhadra Industries Ltd. v. The Commercial Tax Officer,
Kurnoolc 1> pronounced on the proper construction of
the word 'groundnut oil' occurring in r. 18 of the Turnover & Assessment Rules as they then stood. The
assessment proceedings for 1950-51, 1951-52and 195253 had not attained finality against the assessee by the
termination of all proceedings, because there were
still applications for review pending before the High
Court. In the circumstances, it would have been
reasonable to expect that the Sales Tax authorities
should have afforded the appellant the benefit of
the decision of this Court in regard to these later
years also unless there was some insuperable difficulty or other circumstance in the way of their doing
so, and learned Counsel for the respondent has brought
none to our notice. That is so far as regards the
merits of the controversy in the tax revision cases
in which certificates were sought. Of course, if
on any technical or similar points the State is entitled to succeed indisputably they would. not be
prevented from doing so and they would be entitled
(1) [1961] 2 S.C.R. 14.
of Andhra Pra·
de sh
AyyangarJ.
190
SUPREME COURT REPORTS
[1964]
1963
to collect the tax as assessed and as decided in its
favour.by the High Court. But when the respondent fails
Thun~abhadra in the objections raised to prevent the matter coming to
Industries Ltd. this Court, we do not see any justification for the plea
v.
that costs should not follow the event but that the
The Government appellant should be deprived of it 5right to sosts.
of Andhra PraIn the result the appeal is allowed and the comdesh
mon judgment of the High Court in the three appeals
is reversed and the petitions for review-C.M.Ps
Ayyangar J.
4672, 4673 and 4674 of 1959 on the file of the High
Court are allowed with costs here and in the High
1963
October 23
Court-one set of hearing fees.
Appeal allowed.
CHAMPAKLAL CHIMANLAL SHAH
V.
THE UNION OF INDIA
(P.B. GAJENDRAGADKAR, K. SUBBA RAO,
K.N. WANCHOO, N. RAJAGOPALA AYYANGAR AND
J.R. MuDHOhKAR JJ.)
Government Servant-Central Civil Service-When is he
quasi-permanent-Permanent and Temporary servants-Termination of service-Difference in mode not discriminatory-Action
by way of punishment-Even temporary servant entitled to benefit
of Art. 311-Pre/iminary enquiry and departmental enquiry-Latter
does not attract Art. 311(2)-Constitution of India, Art. 311Central Civil Service (Temporary Service) Rules, 1949, rr. 3 and 5.
The appellant was in the service of Union of India, his appointment being temporary liable to be terminated on one month's
notice on either side. He was appointed in June 1949. On August
1954 he was informed that his services would be terminated from
September 1954. No cause was assigned for the termination of
his services and no opportunity was given to him of showing cause
against the action taken against him.
Before such termination
the appellant was called upon to explain certain irregularities
and was also asked to submit his explanation and to state why
disciplinary action should not be taken against him. Certain
preliminary enquiries were held against him but he was not heard
therein. No regular departmental enquiry however followed
and the proceedings were dropped. Claiming that he is a quasipermanent servant he brought a suit against the Union of India
alleging that the termination of his service was not justified. He
prayed in the suit for a declaration that the termination of his
service was illegal. He also claimed arrears of salary. The
trial Court dismissed the suit and he appealed to the High Court •
..
•